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United States District Court Western District of Michigan Southern Division Case 1:13-cv-00744-GJQ-ESC Doc #17 Filed 06/10/14 Page 1 of 10 Page ID#<pageID> UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ROBIN KEESLER, Plaintiff, Hon. Gordon J. Quist v. Case No. 1:13-CV-744 COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________________/ REPORT AND RECOMMENDATION This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. Section 405(g) limits the Court to a review of the administrative record, and provides that if the Commissioner’s decision is supported by substantial evidence, it shall be conclusive. Pursuant to 28 U.S.C. § 636(b)(1)(B), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of social security appeals, the undersigned recommends that the Commissioner’s decision be affirmed. STANDARD OF REVIEW The Court’s jurisdiction is confined to a review of the Commissioner’s decision and of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security Case 1:13-cv-00744-GJQ-ESC Doc #17 Filed 06/10/14 Page 2 of 10 Page ID#<pageID> case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec’y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec’y of Dep’t of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever in the record fairly detracts from its weight. See Richardson v. Sec’y of Health and Human Services, 735 F.2d 962, 963 (6th Cir. 1984). As has been widely recognized, the substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545. 2 Case 1:13-cv-00744-GJQ-ESC Doc #17 Filed 06/10/14 Page 3 of 10 Page ID#<pageID> PROCEDURAL POSTURE Plaintiff was 50 years of age on her alleged disability onset date. (Tr. 159-62). She successfully completed high school and worked previously as a state social worker. (Tr. 47-48, 232). Plaintiff applied for benefits on June 28, 2010, alleging that she had been disabled since October 15, 2009, due to degenerative disc disease, depression, and anxiety. (Tr. 159-62, 182). Plaintiff’s application was denied, after which time she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 122-58). On April 14, 2011, Plaintiff appeared before ALJ Mario Silva with testimony being offered by Plaintiff and a vocational expert. (Tr. 53-78). In a written decision dated July 18, 2011, the ALJ determined that Plaintiff was not disabled. (Tr. 40-48). The Appeals Council declined to review the ALJ’s determination, rendering it the Commissioner’s final decision in the matter. (Tr. 1-6). Plaintiff subsequently initiated this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision. RELEVANT MEDICAL HISTORY On June 24, 2007, Plaintiff participated in a consultive examination conducted by Anne Kantor, LLP. (Tr. 231-37). Plaintiff reported that she was experiencing depression and anxiety regarding her back impairments. (Tr. 231). Specifically, Plaintiff reported that she underwent surgery in 2000 to repair a herniated disc and underwent spinal fusion surgery in October 2006. (Tr. 231). Plaintiff reported that, “I limp most of the time because of the pain,” but Kantor observed that Plaintiff walked with “no apparent limp.” (Tr. 233). Plaintiff also reported that, “I have trouble remembering because of this medication fog,” but Kantor observed that Plaintiff “provided all the information for this report from memory.” (Tr. 233). The results of a mental status 3 Case 1:13-cv-00744-GJQ-ESC Doc #17 Filed 06/10/14 Page 4 of 10 Page ID#<pageID> examination were unremarkable. (Tr. 234-36). Plaintiff was diagnosed with adjustment disorder with mixed anxiety and depressed mood. (Tr. 236). Her GAF score was rated as 53.1 (Tr. 236). On March 11, 2010, Plaintiff participated in an electromyography and nerve conduction examination the results of which revealed the following: EMG and nerve conduction studies appear on the face sheet and reveal a peroneal motor conduction of 51.2 m/sec with normal being greater than 37 m/sec. Distal latency was 4.1 msec with normal being less than 6.0, also well within normal limits. The F wave latency for the peroneal motor nerve was 47.25 msec which is within normal limits. Distal latency measured 3.6 msec with normal being less than 4.0 and the amplitude of the sensory nerve action potential was 6 microvolts which is slightly reduced probably secondary to the peripheral artery disease. On EMG, however, there was evidence of axonal degenerative changes in the left medial gastrocnemius2 which also had decreased reflex compared to the knee on the left side; 1-2+ positive waves and fibrillations were seen in that muscle only. The remainder of the muscles were within normal limits. (Tr. 241-42). The doctor recommended that Plaintiff receive “conservative treatment” in the form of new medications. (Tr. 242). Treatment notes dated March 16, 2010, indicate that Plaintiff exhibited “normal gait and station and normal posture.” (Tr. 253). Plaintiff also reported that her pain medication was “helpful and she feels better now than she has in months to years.” (Tr. 253). On April 27, 2010, Plaintiff was examined by Dr. John Jacobs. (Tr. 250-52). A musculoskeletal examination revealed the following: 1 The Global Assessment of Functioning (GAF) score refers to the clinician’s judgment of the individual’s overall level of functioning. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (hereinafter DSM-IV). A GAF score of 53 indicates “moderate symptoms or moderate difficulty in social, occupational, or school functioning.” DSM-IV at 34. 2 The gastrocnemius muscle is “the largest and most superficial muscle of the calf.” See Gastrocnemius, available at http://www.merriam-webster.com/dictionary/gastrocnemius (last visited on May 9, 2014). 4 Case 1:13-cv-00744-GJQ-ESC Doc #17 Filed 06/10/14 Page 5 of 10 Page ID#<pageID> Global Assessment Gait and Station - normal gait and station. Head and Neck - symmetric, no deformities, masses or tenderness, no known fractures, normal strength and tone, no laxity and normal movements without pain. Spine, Ribs and Pelvis - no deformities, malalignments, masses or tenderness, no known fractures, normal movements without pain and normal strength and tone. Right Upper Extremity - no instability, subluxation or laxity. Left Upper Extremity - no instability, subluxation or laxity. Right Lower Extremity - no deformities, masses or tenderness, no known fractures, normal strength and tone and no instability, subluxation or laxity. Left Lower Extremity - normal strength and tone. Spine/Ribs/Pelvis Cervical Spine: Examination of the cervical spine reveals - normal coordination and reflexes. Upper Extremity Elbow: Examination of the right elbow reveals - no tenderness to palpation, no pain and normal range of motion, normal reflexes, no crepitus. Examination of the left elbow reveals - no tenderness to palpation, no pain and normal range of motion, normal reflexes, no crepitus. Lower Extremity Hip: Examination of the right hip reveals - normal range of motion, no crepitus. Examination of the left hip reveals - normal range of motion, no crepitus. Femur: Examination of the left femur reveals - no known fractures, subluxations or deformities. (Tr. 252). On May 19, 2010, Plaintiff participated in an MRI examination of her lumbar spine the results of which revealed: The lumbosacral spine was imaged from the lower sacrum to the level of T11-12. The conus is normal. The bone marrow is intact, and the alignment of the spine is anatomic. The examination is within normal limits down through L4-5. At L5-S1, there are postoperative changes present consistent with prior discectomy and placement of an interbody spacer. This level is unchanged from the prior examination. There is some enhancing epidural fibrosis seen in the ventral canal at the level of the 5 Case 1:13-cv-00744-GJQ-ESC Doc #17 Filed 06/10/14 Page 6 of 10 Page ID#<pageID> discectomy, but there is no change.
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